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Bierwiler v. Goodwin

United States District Court, D. Montana, Great Falls Division

May 22, 2018

LEVI BIERWILER, Plaintiff,
v.
OFFICER GOODWIN, Defendant.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          John Johnston United States Magistrate

         Plaintiff Levi Bierwiler, a federal prisoner proceeding in forma pauperis and without counsel, filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 1983 alleging Defendant Goodwin discriminated against him based upon race by confiscating playing cards on December 25, 2015. (Doc. 1.) Because Mr. Bierwiler was a federal prisoner at the time his allegations arose, his claims are construed as being brought pursuant to pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

         Defendant filed a motion for summary judgment arguing that Mr. Bierwiler cannot bring a Bivens claim against him as a correctional officer at a privately owned prison. (Doc. 33.) The Motion for Summary Judgment should be granted and this matter dismissed.

         I. STANDARD

         Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The party moving for summary judgment has the initial burden of showing there is no genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If the moving party makes a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to show the existence of a genuine issue of material fact. Id. On summary judgment, all inferences should be drawn in the light most favorable to the party opposing summary judgment. Id. at 159.

         A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         By notice provided on January 12, 2018 (Doc. 38), Mr. Bierwiler was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998)(en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

         II. FACTS

         Mr. Bierwiler was convicted in federal court and sentenced on February 24, 2017 to the custody of the Bureau of Prisons. See United States v. Bierwiler, 15-CR-00053-BLG-SPW, Doc. 80. Mr. Bierwiler was housed at Crossroads Correctional Center (“Crossroads”) in Shelby, Montana in December 2015. (Statement of Undisputed Facts (“SUF”), Doc. 37 at ¶ 5.) At all times while he was housed at Crossroads, Mr. Bierwiler was a federal prisoner in the custody of the United States Marshals Service. (SUF, Doc. 37 at ¶ 6.)

         On December 25, 2015, Officer Goodwin confiscated playing cards on the grounds that they were in excess of the prison's allowable property limits. Mr. Bierwiler alleges Officer Goodwin targets Native Americans and Mexican in performing cell searches such as the one done on December 25, 2015 and that the excess cards were confiscated because of race. (Complaint, Doc. 1.)

         III. DISCUSSION

         Crossroads is a private prison where Mr. Bierwiler was incarcerated under an agreement with the United States Marshals. Even though the Crossroads' employees are private individuals, Mr. Bierwiler was in federal custody while incarcerated at Crossroads, therefore Defendant is considered a federal actor rather than a state actor for purposes of this case. Pollard v. GEO Group, Inc., 607 F.3d 583, 588-89 (9th Cir. 2010), rev'd on other grounds sub nom. Minneci v. Pollard, 565 U.S. 118 (2012); see also Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 940-41 (1982); Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011).

         Normally an action for constitutional violations committed by federal actors can be brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The United States Supreme Court, however, has made clear that a prisoner cannot assert a Bivens claim for damages against private prison employees or the corporations who own and operate private correctional facilities. Minneci, 565 U.S. 118; Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001).

         In Minneci, the plaintiff was a federal prisoner, housed at a facility operated by a private company, who sought relief against its employees for the deprivation of adequate medical care. Minneci, 565 U.S. at 121. The Supreme Court declined to extend Bivens in this situation, because the plaintiff ...


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